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HomeEducationJudge Joan Shkane Dispelling myths and confusion about the legal system

Judge Joan Shkane Dispelling myths and confusion about the legal system

MYTH: Labor unions are subject to the same laws as individuals regarding defamatory speech.
REALITY: A court in a recent case found that a painter’s union, involved in a labor dispute with a hotel’ management, distributed handbills that said that the hotel was infested with bed bugs. The bed bugs were described as being the hotel because it sucked financial blood from its workers. The trial judge found that unions have more freedom than individual citizens to use " intemperate, abusive or insulting language" while in a labor dispute with management. This union’s words were only immoderate language often associated with labor disputes and does not mean the union was acting maliciously. A union has the right to speak freely on behalf of its workers as long as it does not defame the target. This is based on the Constitutional freedoms of speech, assembly, press, and religion.

MYTH: A crime victim can expect restitution for losses resulting from the crime, even if the criminal’s assets have been seized by the government as proceeds of the crime.
REALITY: The government has broad powers to seize a defendant’s property, but no obligation to use those funds for restitution to the crime victim. In the past five years alone federal law enforcement agencies have seized more than $7.8 billion in assets resulting from crime. These assets can be used to reimburse law enforcement for costs of criminal investigations, and to otherwise share with state and local law enforcement. Restitution to victims is routinely ordered as part of most federal criminal sentences. However, if the criminals’ most valuable assets have been seized by the government, then no funds may remain to make restitution to a victim. The government maintains that restitution is not the main purpose of the governmental seizure. A victim may request the government use the seized funds to pay the victim restitution. But the government may decide whether or not to do so. If the government does agree, the process is slow and often obscure. Legislation is proposed to cure this problem for victims, but is not likely to pass.

MYTH: An order of child support is solely in the discretion of the support magistrate or judge making the support order.
REALITY: The parents of a child under the of twenty-one are responsible to support the child if they have sufficient assets and can earn the means of support. The amount to be paid shall be a fair and reasonable sum in accordance with a formula. The formula provides that each parent’s income must be determined. Then the court shall apply certain deductions from each. (Examples of these deductions are child support actually paid on behalf of another child, not the subject child. Social Security and Medicare (FICA) taxes actually paid may also be deducted.). Then the court must multiply the combined parental income (after allowed deductions) up to $143,000 by the percentage representing the number of children addressed by the order. Lastly, the figure is prorated according to each parent’s proportion of the income. This is a broad explanation of the process. An attorney can further refine the process for a litigant, but there is a process. All of this is subject to proof of actual income. Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of the many legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case or to display any predisposition.

Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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